by Bill Sundhu
Article 21 of the Universal Declaration of Human Rights (UDHR) reads:
(1) Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
(3) The will of the people shall be the basis of the authority of government;
this will shall be expressed in periodic and genuine elections which shall be by
universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
The Vienna Declaration and Programme of Action (1993) stated, “democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing.”1
At its most basic, democracy is the will and rule of the people in selecting their government. Samuel Huntington describes it as:
Elections, open free and fair, are the essence of democracy, the inescapable
sine qua non. Governments produced by elections may be inefficient, corrupt, shortsighted, irresponsible, dominated by special interests, and incapable of adopting policies demanded by the public good. These qualities make such governments undesirable but they do not make them undemocratic. Democracy
is one public virtue, not the only one, and the relation of democracy to other public virtues and vices can only be understood if democracy is clearly distinguished from the other characteristics of political systems.2
In parts of the Arab world, free elections could very likely bring to power more intolerant and reactionary governments than those currently. In central Asia, elections merely paved the way for dictators. It is only recent history in the West that has seen the emergence of liberal democracies, with constitutional protections, which place the rule of law at the centre of politics and the state. This form of democracy curbs the power of governments and the will of majorities by legal recognition of rights belonging to individuals.
“Although public participation in the public institutions of the states is a right recognized in Article 25 of the ICCPR, there is no generally accepted human ‘right to democracy.’ Not only is the term ‘democracy’ able to sustain many definitions, but human rights are much more complex and diverse than simply being about democracy or civil and political rights.”3 Human rights, like constitutional rights, are rights that one has as a human being; they belong to the individual. Article 1 of the UDHR begins, “all human beings are born free and equal in dignity and rights.” The preamble recognizes itself as, “a common standard of achievement for all peoples and all nations.” The Vienna Declaration states, “their protection and promotion is the first responsibility of governments.”4 These rights have been described as universal, indivisible, inter-related and inter-dependent.
The pursuit of international human rights cannot avoid the political realities of a divided world – including undemocratic or conflicting versions of democratic societies. Hurrell advocates a pragmatic approach which, “means that international efforts to promote and protect human rights should be disentangled from notions of democracy or economic liberalization and that the pursuit of human rights should be given priority.”5
This strikes a balance between basic rights protection and legitimate variation and diversity.
“Interdependence, even synergy, between human rights, democracy, and development is both possible and desirable. However, realizing such affinities is largely a contingent matter of context and institutional design; it is not automatic or inevitable.”6 Donnelly points to the USA or Brazil as democracies with vast social and economic inequities. South Korea, Taiwan and, perhaps even Cuba, suggest development can be sustained and quality of life enhanced for peoples in the absence of democracy, civil and political rights. The UN Development Report 2005 noted, every hour more than 1200 children die; “the causes of death vary, but the overwhelming majority can be traced to a single pathology: poverty.”7 The effective state makes provision for basic human needs as food, shelter, health and education. Free elections may hold governments accountable and achieve these, but the record is spotty. Economic failure has led to the collapse of fledgling democracies. Human rights can conflict with each other and have to be balanced with other values.
Burkhart contends, “human rights seem to do neither special harm nor good in increasing levels of political development” and that “human rights may well follow democracy, and not the other way around.”8 Additionally, rights of political participation are but a small subset of the array of international human rights. The aim of democracy is to ensure the people rule and not the few. “Human rights, by contrast, aim to empower individuals, thus limiting rather than empowering the people and their government…Beyond who ought to rule, human rights are concerned with how the people rule, and what they do in so ruling.”9
Rights practices and human development vary greatly among democracies. Some non-democratic states do much better on certain rights. Furthermore, the will of the majority often diverges from the rights of individual persons. Liberal democracies, as opposed to electoral democracies, are a form of limited government. Independent judiciaries can be a powerful check on the “tyranny of the majority.” The conflict between the will of the people and judicial review is an old one; Jefferson wrote:
The judiciary in the United States is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated republic…A judiciary independent of a king or executive alone is a good thing; but independence of a will of the nation is a solecism [an incongruity], at least in a republican government.10
Similarly, Nehru is said to have advised Sukarno that Indonesia lacked three elements for democracy at independence, which India possessed: an independent judiciary, civil service and military. Courts in democracies, not infrequently, strike down laws which express the will of the majority through elected representatives. In other democracies, where governments are elected by majority, but lack an independent judiciary or are afflicted with corruption, such checks on government power and thus rights protection is lacking. The preamble of the UDHR says,
Whereas, disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind. Whereas it is essential if man is not to have recourse as a last resort to rebellion against tyranny and oppression that human rights should be protected by the rule of law.
The rule of law is integral to a constitutional government, which is based on consent. Zakaria writes, “For much of our modern history, what characterized governments in Europe and North America, and differentiated them from those around the world, was not democracy but constitutional liberalism. The ‘Western model of government’ is best symbolized not by the mass plebiscite but by the impartial judge.”11
Of Africa, Aidoo writes, “whereas it is not possible to have human rights in undemocratic conditions, democracy will not automatically guarantee human rights.”12 Democracy has to do with participation, accountability and division of powers, whereas human rights deal with basic freedoms. He also points to the benefits of a functional middle class involved in political parties and democratization, and civil society organizations, both contributing to demands for human rights.
Others point out “sustainable democracy must be embedded in the local conditions and result from real forces within society…we should aim at a democracy which lasts.”13 Whether it be a functional “ethical community” or cultural factors in human rights, we should pay heed to them, but not overrate them. There is a “margin of appreciation.” A society must become educated in a rights culture and there is a modeling function. The idea of human rights and the greater freedom promised by democracy is one increasingly difficult to hide or deny to the masses. An idea cannot be imprisoned. Globalization and modern forms of communication transcend the control of governments.
At the WCHR (Vienna) in 1993, the foreign minister of Singapore said, “universal recognition of the ideal of human rights can be harmful if universalism is used to deny or mask the reality of diversity”14 and the Chinese asserted “individuals must put the states’ rights before their own.” Sen argues, “generalization about values in Asia is hard to vindicate on the basis of an unbiased reading of Asian historical classics as well as contemporary experiences and writings in Asia. The diagnosis of Asian values…is clearly influenced by a reactive mode of responding to Western claims of being the natural home of liberty and rights…this version of anti-Western rhetoric is also, in a dialectical sense, obsessed with the West.”15
Sen has written extensively of the benefit of democracy and core freedoms to economic and social development. Rights matter and challenge a not unpopular view a generation ago that “peoples democracies” and the stability of authoritarianism was justified for development. A former U.N. Secretary-General has said, “Democracy and development are linked in fundamental ways.”16 Even an authoritarian power like China has to respond to the human rights agenda. This is proof of the power and influence of the idea and international law.
The success of South Korea, Taiwan, or Malaysia may be instructive. Zakaria observes all were governed by military or single party systems. They have, however, moved a significant way along the path of enhanced quality of life and rights for their peoples. They liberalized the economy and legal system and then held freer elections. “First, a government must be able to control the governed, then it must be able to control itself. Order plus liberty. These two forces will, in the long run, produce legitimate government, prosperity, and liberal democracy. Of course, it’s easier said than done.”17
Pragmatism and knowledge of local history and conditions are relevant considerations in the process and how hard the push in advancing democracy and human rights. Henkin writes, “human rights are to be enjoyed in national societies as rights under national law. The purpose of international law is to influence states to recognize and accept human rights.”18 Hurrell suggests the advocacy of universally proclaimed values “does not preclude sensitivity to context but it does involve distinguishing between upholding particularly important core norms and attempting to export complete ways of life or conceptions of the good.”19
Virtually all states accept the authority of the Universal Declaration of Human Rights. That human rights play a major role in political discussions is not surprising because they respond to important aspirations of individuals and societies around the world. “People when given a chance usually choose human rights, irrespective of region, religion or culture.”20 Donnelly calls it the “growing hegemony of the idea of human rights.” For him the distinction between human rights and the language of democracy and freedom is vividly demonstrated by the Bush administrations’ introductions to 2002-2006 national security statements which “use ‘freedom’ 25 times, ‘democracy’ seven times, and ‘human rights’ just once…human rights does have a relatively precise and well-settled meaning in contemporary international relations. Democracy is both narrower and more imprecisely defined, especially internationally.”21
The role of globalization in relation to democracy and human rights is too complex to comprehensively address in this paper. Suffice it to say, it is increasingly difficult if not impossible for states to isolate themselves from the influences of globalization – including the power of investment, economics and mass communication. Every single state has ratified at least one treaty to protect human rights. These rights are raised in virtually every sphere of activity across the globe. Even transnational corporations require rule of law to protect their interests and resolve disputes. No state which seeks investment or to belong to the international order is immune.
Democracies are more accountable to the public. Liberal democracies have protections for minorities and individuals against government abuse. They limit the range of democratic decision-making. There is a link between the attainment of liberal democracy and the pursuit of human rights. The European Union has made human rights and democracy a central aspect of its external relations. The European Court is not only reflecting this policy in its statement, but also an essential objective that democracy and rule of law have a key role to play in human rights. Such rights are, indeed, best protected with democracy and rule of law. However, human rights play an important role in the absence of democracy or rule of law.
Despite issues of enforcement and attempts to hide violations, despite state sovereignty; the rights are universal and the fact states go to great lengths to deny or defend their records demonstrates the power and influence of universal rights. The discourse does not deny the rights; it denies the violations.
Universal human rights are recent in the scheme of human history. That international human rights have moved as far as they have in a mere sixty years is a breathtaking accomplishment. That should be the focus and not its flaws. International human rights exist in and of themselves, irrespective of democracy or rule of law. They exist at a higher plain. Whereas democracy and rule of law remain objectives and are more conducive to rights protection; the strategy of human rights advocates is to further the process toward democratization and rule of law, as a means to an end and not the end itself.
5. A. Hurrell, “Power, principles and prudence: protecting human rights in a deeply divided world”, in T. Dunne and N.J. Wheeler (eds.), Human Rights in Global Politics (Cambridge University Press, 1999), pp. 277-302, at 282
7. UNDP, Human Development Report 2005 (New York, 2005) reproduced in Steiner, Alston & Goodman, International Human Rights in Context, 3rd ed., Oxford University Press 2008, at 265.
8. Ross E. Burkhart, “Humane Globalization? The Clash of Human rights and Globalization Agendas in the Quest for Development”, Presented at American Political Science Association 2001, Boise State University, at 22-23.
10. Letter to Thomas Ritchie, December 25, 1820, in Paul Leicester Ford, ed., The Writings of Thomas Jefferson (New York: G.P. Putnam’s Sons, 1899), p. 170-171, quoted in Robert A. Dahl, Democracy in the United States: Promise and Performance, 3rd ed., 1976, Rand McNally, p. 223.
16. Report of the Secretary-General: An Agenda for Development-Development and International Economic Cooperation, U.N. Doc. A/48/935 (1994), reproduced in McCorquadale and Fairbrother, supra., at 6 of 21.